OK. This may seem kind of weird. Go with me a little.
Among the previously shortlisted candidates the sitting president says he will consider for a vacancy on the Supreme Court of the United States is the soon-to-be senior senator from Utah, Mike Lee.
Lee would tick some of the boxes on the Republican list: He’d be against a woman’s right to control her own reproductive system. He’d see “religious freedom” as anything that gives conservative Christians a leg up over any other group or alliance of groups. And he’d be all for states rights when the thing the state wants to do is conservative.
One silver lining in that cloud would be that a Justice Lee might not be a reliable vote in deference to presidential authority. As a senator, he has displayed a very healthy, and uncommon, suspicion of things like the Patriot Act, blanket or warrantless wiretapping and allowing the homeland security apparatus to seize and hold people indefinitely.
Such skepticism would be a welcome addition to the high court. If this opposition to the Deep State didn’t kill his chances of being nominated or confirmed in the first place.
Or Lee might be among the easiest to get confirmed. As a sitting U.S. senator, he might gather more votes from his moderate colleagues than would a judge with similar views but no senatorial courtesy to ride on. Such delicacies can mean a lot in Washington.
Then, if Lee leaves his seat to don the robe, the Utah election machine fires up.
Usually, when a U.S. senator resigns or dies, the governor of that state chooses a replacement to serve until the next general election. Which, unless it all happened in the next couple of weeks, means the election of 2020, to fill out a term that was to last to January of 2023.
One thing that is different about Utah law is that, instead of allowing the governor to pick anyone (presumably from the governor’s own party), our governor is required to defer in part to the party of the senator who is leaving.
Gov. Gary Herbert is further limited in his choice by a state law that says he can only pick from among three candidates to be named by the Republican State Central Committee. So he couldn’t necessary choose, say, the state’s most humane and Twitter-literate Republican, Lt. Gov. Spencer Cox. (Not that Cox would want the job. That D.C. to Fairview commute would be a killer.)
The central committee might pull to the far right in picking a list of replacements. But, come the special election of 2020, the true-believer caucus and convention system that allowed Lee to muscle out Sen. Robert Bennett all those years ago will be breathing its last. And the more moderate Republican electorate might be able to wrest that seat back.
That would be good for Utah. And moving Lee to a lifetime Supreme Court gig to allow it to happen — knowing that a more moderate candidate is not in the cards — might be considered a net benefit.
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